Levvell [2021] NSWDC 518

• Aboriginal offender removed from mother’s care at 11 months – Bugmy principles applied to reduce moral culpability – no causal connection required

[68] … In most case a causal connection between the crime and factors that reduce moral culpability is not required. That principle stems from the recognition that in sentencing decisions; immaturity, social disadvantage, a childhood deprivation (such as exposure to violence and alcohol abuse), trauma (including as a victim of crime) and mental or intellectual incapacity (often in combination) frequently precedes the commission of crime: Kennedy [2010] NSWCCA 260 at [53]; Millwood [2012] NSWCCA 2 at [69]; Muldrock (2011) 244 CLR 120; [2011] HCA 39 at [54] & [58]; Bugmy (2013) 249 CLR 571: [2013] HCA 37at [40] and [45]; AWF (2000) 2 VR 1; [2000] VSCA 172; Nasrallah [2021] NSWCCA 207 at [12]; KT; Clarke-Jeffries.

• Relied upon Significance of Culture to Wellbeing, Healing and Rehabilitation report in considering impact of incarceration of offender in view of impending birth of child – ICO imposed

[71] If Levvell is returned to gaol he will miss the birth of his child and not be there to support his partner and care for the bay in its first years. There is nothing so exceptional in this simple fact that of itself requires a non-custodial option: Edwards (1996) 90 A Crim R 510 at 515: Hoskins [2016] NSWCCA 157 at [63]. That said, any impact of a custodial sentence must be synthesised along with all other factors.

[72] When a parent is gaoled, there is often a significant disruption in the family and an increased risk to any children. Disruption to a family at a critical time can cause lasting trauma and impact on a child’s future emotional and cognitive processes. Positive experiences as a child can enrich lives. Adverse childhood experiences can have lifelong negative impacts: Significance of Culture to Wellbeing, Healing and Rehabilitation; V Edwidge and P Gray, Bugmy Bar Book Project, 2021 at [50]. Levvell was negatively impacted by his removal from his mother as a baby; any prolonged separation from his soon to be born child risks continuing that cycle.